Regnat Populus.
Those two words are etched into the Great Seal of Arkansas. They are inscribed above the doors of our Capitol. They are the first promise our state makes to every citizen—that in Arkansas, sovereignty belongs to the people, and every institution of government exists to serve them—“the people rule.”
Every licensed attorney in Arkansas swore a duty to uphold that first and most important founding principle. That duty compels me to speak plainly today.
I have watched the current dispute involving Amendment 33 and the Arkansas Board of Corrections with great interest, and as of late, with even greater concern for the health of our democracy. The independence of our constitutional boards and commissions is on the line, and while that alone is significant, I believe the Arkansas Supreme Court has the greatest institutional stake in getting this right.
The Court’s legitimacy is its only currency. It has no army. It has no taxing power. It has no police force. The only thing that compels obedience to its decisions is the public’s belief that those decisions were reached fairly, by impartial jurists, through a process that no party could manipulate. And unfortunately, the Court’s legitimacy is now in jeopardy.
Let me explain why.
The Governor’s Appointment of Her Political Patrons to the Supreme Court
After the Board of Corrections—while represented by independent, outside counsel—succeeded in obtaining a permanent injunction against the current administration in circuit court, the Attorney General filed an appeal. That’s a normal part of any lawsuit.
After the appeal was filed, Justices Cody Hiland and Nicholas Bronni recused themselves from hearing the appeal. That’s also a normal part of any appeal when a justice believes personal conflicts necessitate their recusal.
Our Constitution accommodates this circumstance: the Chief Justice certifies the vacancy to the Governor, and from there, the Governor has two choices: commission a special justice within 30 days, or allow that period to expire, which would then transfer the appointment power to the Lieutenant Governor. In most circumstances, this is a reasonable and workable arrangement. In the case of the Board of Corrections, this appointment power is being abused.
When a Governor exercises the appointment power under Amendment 80, Section 13, she is not exercising a political prerogative. She is discharging a constitutional trust. The people of Arkansas, through their Constitution, delegated this power to the Governor on the implicit understanding that it would be exercised in good faith—meaning with fidelity to the independence of the judiciary, not with an eye toward the outcome of the Governor’s own litigation.
But in this case, the Governor of Arkansas, a named party to a constitutional appeal involving her administration’s legislative attempt to dissipate the independence guaranteed by Amendment 33, has personally selected the special justices who will sit on the Court and vote on whether she wins or loses. The Governor picked her own judges. Who did she pick?
One special justice is Don Curdie. Mr. Curdie is a known Sanders campaign volunteer and supporter. This relationship creates an appearance of bias that cannot be overlooked.
The other special justice commissioned by Governor Sanders is Cory Cox. Mr. Cox is the former Chief of Staff and Legislative Director for the Attorney General—the very office prosecuting the appeal on the Governor’s behalf. He is also a lobbyist—the Director of Government Relations for a private business, CareSource. And Mr. Cox serves as a member of Arkansas Tech University’s Board of Trustees. Arkansas Tech is an institution of higher education that, like the Board of Corrections, enjoys independence from direct gubernatorial control through Amendment 33.
Especially in a case as significant as the Board’s independence under Amendment 33, the appearance of impropriety created by these appointments is untenable. They must be addressed.
The principle that no person shall judge their own cause is not some modern invention of activist judges. It is the oldest principle of Western law. It predates the Magna Carta. It predates the Constitution of the United States. It is the reason we have courts at all: because civilized societies recognized, centuries ago, that power cannot be trusted to adjudicate its own disputes. Our state’s founders understood this instinctively. Regnat Populus is not just a motto. It is a constitutional command. It means that the legitimacy of every act of government—every law, every executive order, every judicial decision—derives from the consent of the governed and from the structural guarantees that ensure no single branch of government can dominate the others.
Today, that principle is under attack, and the Due Process Clause requires Special Justices Cox and Curdie to recuse given the significant appearance of impropriety attendant with their commissions handed to them by Governor Sanders.
The appearance of impropriety here is self-evident: a direct gubernatorial commission—given by the party to the litigation, for the specific purpose of hearing the Governor’s appeal about the scope of the Governor’s constitutional authority—is not and should never be a close call. It is an open-and-shut case for disqualification and recusal. The fact that it has been allowed to proceed without objection from the Court itself is, frankly, bewildering.
Voluntary Recusal or Involuntary Disqualification
Thankfully, the Governor’s commission of Special Justices Cox and Curdie is not the end of this story.
While Amendment 80 gives the Governor the power to appoint special justices, Amendment 28 keeps the power to regulate lawyers and judges squarely in the judicial branch. Under that authority, Rule 2.11 of the Arkansas Code of Judicial Conduct provides that a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. There is no exception for Special Justices. There is no exception for appointments made by the Governor. The rule is clear, and it applies in this case.
At this juncture, I see two realistic pathways through which to proceed.
The first, and simplest—compelled by honor, duty, and fidelity to the constitution—is for the Special Justices to voluntarily and immediately recuse themselves. The structural reality of their appointment makes impartiality impossible to guarantee and impossible for the public to believe in. They owe their commissions to the appellant—the party whose case they are being asked to decide. Every Arkansan is entitled to ask: How can these judges be fair when they were chosen by one side?
The honest answer is: we cannot know. At best, we can hope that Mr. Cox and Mr. Curdie will abide their solemn oaths to uphold the constitution. But hope is not a constitutional safeguard, and the people of Arkansas are entitled to more than hope. They are entitled to a system that makes the question unnecessary. These lawyers should step aside, and they should be replaced with independent lawyers who do not carry the taint of a direct political connection to the party before the Court. The integrity of the institution is bigger than any one case, any one appointment, or any one governor. And the integrity of our judiciary is on the line.
If Special Justices Cox and Curdie do not live up to the oaths of office they swore to uphold by recusing from this appointment, the second option is for the Court to protect itself. The Court has both the authority and the duty to act. And the Court, acting collectively, has the inherent authority to ensure that the proceedings before it satisfy due process—not only for the parties, but for the people of Arkansas, in whose name every opinion is issued. If the current Special Justices will not recuse voluntarily, the Court should act to ensure that the constitutional guarantee of an impartial tribunal is honored.
Taking no action is unacceptable. A court that permits a party to select its own judges, and that does nothing when the public’s confidence in the process is visibly eroding, is a court that is sawing off the branch it sits on. The damage will not be limited to this case. It will infect every future decision, every future appeal, every future moment when an Arkansan looks to the Supreme Court and asks: Can I trust this institution? The Court must act to protect itself, because if it does not, no one else can.
Conclusion
What is happening in this case is not normal. It is not acceptable. And it is not something we should shrug off as “just politics.” A governor who appoints the judges on her own appeal has the structural capacity—whether or not she exercises it—to tilt the scales of justice. A system that permits this without constraint is a system that has abandoned the principle on which it was founded. Again, the people rule through their Constitution. They rule through the separation of powers. They rule through an independent judiciary that answers to the law and not to the official who appointed them to hear a specific case.
If we allow this precedent to stand—if we allow it to become the accepted practice that governors may select the judges who hear their own cases, and that those judges need not recuse despite the obvious structural conflict—then we will have told every future governor, of every party, that the courts of Arkansas are available for capture. That the highest court in the state can be stacked, case by case, appointment by appointment, whenever the Governor’s own interests are on the line.
We, the governed, are entitled to a government that turns square corners and plays by the rules. That is the vision of Arkansas that the framers of our Constitution—the people who chose Regnat Populus as our motto and meant it—intended to build. While the temptation to reward allies and select sympathetic voices is human, the Governor’s oath is not to her allies or her administration’s litigation strategy. Her oath is to the Constitution of the State of Arkansas. And the Constitution demands—not requests, not suggests, but demands—that the judicial branch operate free from the control or undue influence of the executive. If the Governor won’t act in good faith, the lawyers she appointed have a solemn professional duty to stand down.
I pray that honor and duty ultimately prevail and that the Special Justices recuse themselves, and that the Governor or Lieutenant Governor select unimpeachably independent replacements. And the Court should make clear, by word and deed, that it will not permit its own integrity to be compromised by the political interests of any party—including, and especially, the most powerful party in the state.
ICYMI:
Is Separation of Powers ‘Fake News in Arkansas?
Part 1: The Governor Lost in Court. So, She Changed the Court, the Board, and the Rules.
